Category Archives: Uncategorized

High Court Denies Defendant’s Request For Mental Health Sentencing Alternative

Bellingham Defense Attorney, Mental Health, Mount Vernon Criminal Defense Attorney, No Contact Order, Skagit County Criminal Defense, Uncategorized, Washington Court of Appeals, Whatcom County Criminal Defense, , , , ,

Mental health disorder names - not criminally responsible

In State v. Colon, No. 59046-8-II (Apr. 29, 2025), the WA Court of Appeals held that sentencing courts may deny a defendant’s request for a Mental Health Sentencing Alternative (MHSA). Reasons for denial may include (1) no nexus between a defendant’s mental health diagnoses and the crime; (2) the victim opposes a MHSA; (3) the defendant has a lengthy criminal history and non-compliance with court orders with limited history of engagement in mental health treatment, and (4) continued treatment within prison is more suitable.

FACTUAL BACKGROUND

Colon was convicted of felony violation of a no-contact order by going to his ex-wife and children’s apartment. He requested sentencing under the MHSA. However, the trial court denied his request and sentenced Colon to 60 months of prison.

At a re-sentencing hearing, the court again denied Colon’s request for a MHSA  and found it inappropriate. The sentencing court concluded neither the community nor Colon would benefit from a MHSA for several reasons: there was no nexus between Colon’s mental health diagnoses and his conduct underlying his conviction; the victim’s opposition to a MHSA and her history with Colon; and Colon was a poor fit for a MHSA because of his criminal history, non-compliance with court orders, and limited history of engagement in mental health treatment.

Colon appealed, arguing that the sentencing court abused its discretion by denying his request for a MHSA on a non-statutory, impermissible basis.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals (COA) began by saying Courts may deviate from the standard prison sentences under specified circumstances, such as for a MHSA. Furthermore, granting an alternative sentence is entirely within the sentencing court’s discretion. However, the sentencing court must meaningfully consider the request for a discretionary sentence in accordance with the applicable law.

The COA stated a MHSA has four eligibility requirements:

  • The defendant is convicted of a felony that is not a serious violent offense or sex offense;
  • The defendant is diagnosed with a serious mental illness recognized by the diagnostic manual in use by mental health professionals at the time of sentencing;
  • The defendant and the community would benefit from supervision and treatment, as determined by the judge; and
  • The defendant is willing to participate in the sentencing alternative.

Here, Colon argued the sentencing court improperly held that a nexus must exist between his conduct and his mental health diagnosis. This “nexus,” he argued, is not one of the four eligibility requirements (elements) for a MHSA sentence. The COA felt differently.

“This is not an additional element, but simply one way to consider whether the community would benefit from treatment aimed at controlling symptoms arising from Colon’s mental health diagnoses that could lead to criminal conduct in the community,” said the COA. “Thus, the court did not abuse its discretion when it considered this factor in connection with whether a MHSA would benefit the community.”

Additionally, COA held that the sentencing court gave other reasons supporting its determination that a MHSA was inappropriate. These include the victim’s opinion, Colon’s criminal history, Colon’s noncompliance with community custody, and Colon’s  lack of participation in treatment and services. The COA reasoned these considerations speak to the court weighing Colon’s prospective treatment and how to protect the community.

“The court did not abuse its discretion in denying Colon’s request for a MHSA based on its consideration of a nexus between Colon’s mental health diagnoses and his conduct. Instead, the court considered the relevant statutory factors and made clear that its conclusion was based on the lack of benefit to both Colon and the community.” ~WA Court of Appeals

Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

April is Distracted Driving Awareness Month

Uncategorized

3 Types Of Distracted Driving: Visual, Cognitive And Manual

Distracted driving is a deadly epidemic on our roads. Cell phone use — specifically, texting, talking, and social media use — has become the most common distraction. Other risky actions include adjusting the radio or GPS, applying makeup, eating and drinking. By driving distracted, you’re robbing yourself of seconds that you may need to avoid a close call or deadly crash.

According to the National Highway Traffic Safety Administration (NHTSA), distracted driving killed 3,275 people in 2023. from April 10 through 14, you may see increased law enforcement on the roadways. This is part of the national paid media campaign Put the Phone Away or Pay. This campaign reminds drivers of the deadly dangers and the legal consequences – including fines – of texting behind the wheel.

THREE TYPES OF DISTRACTED DRIVING

The AAA-Foundation for Traffic Safety (AAA-FTS) has identified the 3 three types of distracted driving as:

  • Visual Distracted Driving – Taking eyes off the road
  • Cognitive Distracted Driving – Mental distractions that take the driver’s mind off the task of driving
  • Manual Distracted Driving – Taking your hands off the wheel

DISTRACTED DRIVING CAN BE CRIMINALLY CHARGED AS RECKLESS DRIVING

In Washington State, “Dangerously Distracted Driving” is a traffic infraction.  However, this low-level traffic infraction can be elevated to the criminal offense of  Reckless Driving if the circumstances prevail. A person is guilty of Reckless Driving if they exhibit a willful and wanton disregard for the safety of persons or property. Washington law identifies specific actions considered prima facie evidence of Reckless Driving. These include:

  1. Embracing another while driving: As per RCW 46.61.665, it is unlawful to operate a motor vehicle while embracing another person, as it prevents the free and unhampered operation of the car.
  2. Racing: Under RCW 46.61.530, any person or persons racing any motor vehicle on any public highway of this state is guilty of reckless driving, regardless of whether such speed is in excess of the maximum speed prescribed by law.
  3. Excess Speed: Excess speed can serve as prima facie evidence of reckless driving under RCW 46.61.465. However, evidence of excess speed alone is insufficient to uphold a conviction for reckless driving.

Reckless Driving charges can result in very serious consequences for all drivers, especially Commercial Driver’s License (CDL) holders and others who drive for work. Reckless Driving is a gross misdemeanor that can result in the following penalties & consequences:

  • Jail time of up to 364 days
  • $5,000.00 fine
  • Probation
  • Mandatory 30-day driver’s license suspension
  • SR-22 high risk auto insurance for 36 months
  • Ignition Interlock requirement
  • Increased auto insurance premiums
  • Loss of employment (especially for CDL holders)

Please contact my office if you, a friend or family member are charged with Reckless Driving or any other crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

Vehicular Homicide Conviction Prohibits Defendants From Owning or Possessing Firearms

Bellingham Defense Attorney, Constitutional Rights, felony, Firearm, Mount Vernon Criminal Defense Attorney, Skagit County Criminal Defense, Uncategorized, Washington Court of Appeals, Whatcom County Criminal Defense, , , ,

Judge Rules Bruen Doesn't Protect Felons' 2A Rights - Firearms News

(rawf8 / Shutterstock photo)

In State v. Hamilton, No. 85055-5-I (March 17, 2025), the WA Court of Appeals decided that disarming those convicted of Vehicular Homicide  is consistent with the United States’ historic tradition of firearms regulation.

FACTUAL BACKGROUND

Mr. Hamilton was convicted of Vehicular Homicide after a jury trial. Due to his felony conviction, the court notified Hamilton that he could no longer possess firearms. He was ordered to immediately surrender his concealed pistol license and any firearms in his possession. The court also imposed conditions forbidding him from owning, using, or possessing a firearm or ammunition, consistent with the prohibition set out under statute.

On appeal, Hamilton argued that Washington’s statutes restricting his firearms post-conviction violate the Second Amendment to the United States Constitution.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals (COA) discussed numerous U.S. Supreme Court decisions addressing Second Amendment. These decision include New York State Rifle & Pistol Association v. Bruen, and United States v. Rahimi. In applying stare decisis, the COA ultimately held that the overwhelming majority of courts addressing statutes that ban convicted felons from possessing firearms have rejected the contention that such laws are now unconstitutional. Next, the COA addressed Hamilton challenging the as-applied constitutionality of several Washington statutes that work in conjunction to strip a person’s right to bear arms upon conviction for a felony.

” . . . We conclude that disarming those with felony convictions is demonstrably consistent with America’s historic tradition of firearms regulation. Common law has a long history of disarming individuals, or categories of individuals, who were viewed as a danger to public order . . . The historical justification for felon bans reveals one controlling principal that applies to each historical period: violent or otherwise dangerous persons could be disarmed . . .”

“Groups of people who were categorized as presenting a danger to the public order during that era of our nation’s history included American Indians, Catholics, Quakers, slaves, and freed Black people. Such restrictions are repugnant and would fail modern constitutional scrutiny, but they nevertheless demonstrate historical precedent for restricting the firearms rights of persons perceived to be dangerous.” ~WA Court of Appeals

Finally, the COA addressed Hamilton’s argument that his felony conviction involved a “tragic accident” rather than the actual use of a firearm or political activity. The COA reasoined that Hamilton nevertheless committed a felony offense that resulted in the death of another person. As a result, reasoned the COA, his behavior places him squarely in the category of persons deemed dangerous to the public order for the purpose of historical firearms regulation.

With that, the Court of Appeals affirmed Hamilton’s criminal conviction.

Please contact my office if you, a friend or family member are charged with a Firearm Offense or any other crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

Otherwise Inadmissible Evidence May Be Admitted Under the Independent Source Doctrine

Bellingham Defense Attorney, Mount Vernon Criminal Defense Attorney, Search Warrant, Skagit County Criminal Defense, Uncategorized, Whatcom County Criminal Defense, , , , ,

Chapter 9 The Exclusionary Rule. - ppt video online download

In State v. Tyson, the WA Court of Appeals held the Independent Source Doctrine allows admission of digital evidence seized from a cell phone pursuant to a valid warrant regardless of whether the officer’s initial, warrantless seizure of the physical phone was authorized.

The Independent Source Doctrine

The Independent Source doctrine provides that evidence from an illegal search may be admitted when it can be established that the evidence would have been eventually legally obtained from an independent source. For example, if police obtain evidence during an unlawful search but later obtain the same evidence through a valid search warrant, the evidence can be used in court. 

FACTUAL BACKGROUND

Tyson was charged with numerous sex offenses. He moved to suppress all evidence obtained from the search of his cell phone by police. He later expanded his motion to include suppression of all evidence obtained as a result of the search warrants in this case.

With regard to the cell phone, Tyson argued that the deputy’s seizure of the phone pending the issuance of a warrant to search it was unlawful, and that any evidence obtained during the subsequent search of the phone should be suppressed. With respect to the search warrants, Tyson argued that the first warrant was unlawful because it lacked sufficient particularity. Tyson further argued that the evidence obtained as a result of the subsequent warrants should be suppressed as “fruit of the poisonous tree” of the unlawful first warrant.

Following a pre-trial hearing, the trial court denied both of Tyson’s motions to suppress. The trial court ruled that the warrantless seizure of the cell phone was authorized by the exigent circumstances exception, but not by the plain view exception. The trial court further ruled that the warrants were supported by probable cause and sufficiently particular.

The case proceeded to a bench trial. The judge found Tyson guilty on charges.

On appeal, Tyson argued that the trial court erred when it denied his motions to suppress evidence. First, Tyson argued that the warrantless seizure of his cell phone was unconstitutional because no exception to the warrant requirement applies. Next, Tyson argued that the trial court erred by admitting evidence obtained pursuant to the warrants to search Tyson’s cell phone, laptop, and hard drive. Tyson argues that the warrants were unconstitutional because they were not supported by probable cause under the Aguilar/Spinelli test, and the allegations in the warrant were not sufficiently particularized.

COURT’S ANALYSIS & CONCLUSIONS

In short, the WA Court of Appeals held that regardless of whether the warrantless seizure of Tyson’s cell phone was authorized, evidence obtained from the cell phone is admissible under the independent source doctrine because it was seized pursuant to a valid warrant.

“As we conclude above, the photos and evidence on the cell phone were seized pursuant to valid search warrants. Because there had been no search of the phone prior to the warrant application, no information from the phone was used in any of the search warrant affidavits. Therefore, neither the deputy’s decision to seek the warrants nor magistrate’s decision to issue the warrants were influenced by the warrantless seizure of the cell phone. The trial court did not err in denying Tyson’s motion to suppress.” ~WA Court of Appeals

With that, the Court of Appeals denied Tyson’s appeal and upheld Tyson’s convictions.

Please review my Search & Seizure Legal Guide and contact my office if you, a friend or family member are charged with a similar crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

A Person May Harass Someone by Threatening to Injure Another

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Man pointing threatening finger

In State v. Johal No. 58980-0-II, the WA Court of Appeals held that a person may harass someone by threatening to injure another.  Therefore, the victim of Harassment need not be the person who was threatened.

FACTUAL BACKGROUND

The Defendant Mr. Johal and his former partner Ms. Rivera dropped off their six-week-old child, SJ, with a friend. Later that night, after an apparent dispute, Rivera walked into a convenience store. Johal later entered the store and dragged Rivera out. Around 2:00 AM, Johal arrived at the friend’s house and insisted on taking SJ home. Johal took the baby to his apartment.

Vancouver police were dispatched to Johal’s apartment. When officers arrived, Rivera exited and they escorted her away. The officers believed that SJ still was inside the apartment. Several officers entered the apartment. Johal was holding SJ, and using profanity he yelled for the officers to leave his apartment. Johal then picked up a hammer, drew his arm back, and said that he was going to kill SJ. Johal eventually put down the hammer, but he then started walking toward the balcony and yelled that he was going to throw SJ off the balcony.

Officers stopped him from getting to the balcony and eventually removed SJ from Johal’s arms. The State charged Johal with Felony Harassment – Death Threats, Felony Violation of a DV No-Contact Order, First Degree Kidnapping, Third Degree Assault, and Attempted First Degree Assault.

At trial, the officers who witnessed the defendant threaten to kill the infant in his arms testified they the victims of Felony Harassment. That is because the defendant’s threats were to coerce or intimidate the officers into leaving the scene.

The trial court found Johal guilty of multiple felonies, including Felony Harassment-death threats. Regarding the Felony Harassment-death threats charge, the court orally found that Johal threatened to kill SJ and that the officers heard the threat and reasonably believed that Johal would use the hammer to kill SJ.

Johal appealed his conviction of Felony Harassment-death threats. He argued that the victim of the harassment must be the person the defendant threatens to injure or kill, and that third parties who are not threatened with injury or death cannot be victims of harassment. He claimed that the person threatened with injury or death – here, SJ – must be placed in reasonable fear that the threat will be carried out to support a Harassment conviction.

COURT’S ANALYSIS & CONCLUSIONS

The WA Court of Appeals began by saying that to sustain a conviction for Felony Harassment, the statute requires that the State prove that the person threatened was placed in reasonable fear that the threat to kill would be carried out. The only question here is who constitutes the “victim” of harassment.

Next, the Court of Appeals reasoned that the Harassment statute states that a person is guilty of harassment if they threaten to cause bodily injury to “the person threatened or to any other person.” (Emphasis added.)

“This language establishes that the harassment victim and the person threatened with bodily injury need not be the same person,” said the Court of Appeals. “In other words, a defendant may harass one person by threatening to injure another person.”

Next, the Court of Appeals stated that here, a rational trier of fact could determine that Johal’s threats to kill SJ were both directed at and an attempt to coerce or intimidate the officers on the scene. He wanted the officers to leave his apartment and to abandon their attempt to arrest him, and threatening to kill SJ was his way of accomplishing that end. Therefore, the officers were the “persons threatened” under the statute.

“We hold that based on the offense as charged, the officers in this case could be victims of harassment under RCW 9A.46.020(1)(b) even though Johal threatened to kill SJ. As a result, the trial court properly addressed under RCW 9A.46.020(1)(b) whether the officers were placed in reasonable feared that the threat to kill SJ would be carried out.” ~WA Court of Appeals.

With that, the Court of Appeals affirmed Johal’s conviction for Felony Harassment – Death Threats.

Please contact my office if you, a friend or family member are charged with a Felony Harassment or any other crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

Whatcom County Sheriff’s Office to Host Gun Buyback Program

Bellingham Defense Attorney, Firearm, Gun Buyback Program, Mount Vernon Criminal Defense Attorney, Skagit County Criminal Defense, Uncategorized, Whatcom County Criminal Defense, , , , ,

gun-buyback

Photo Courtesy of Associated Press – Mel Evans

The Whatcom County Sheriff’s Office (WCSO) recently announced it was awarded $125,000 from the Washington State Attorney General’s Office to support a gun buy-back program and firearm storage in Whatcom County.

WHAT IS A GUN BUYBACK PROGRAM?

Gun buyback programs compensate individuals who turn over firearms to a public agency or private organization. In the United States, nearly all buyback programs are implemented at the county or city level, and participation is always voluntary. The primary goal of gun buyback programs is to prevent firearm violence by reducing the stock of firearms in a community.

Gun buybacks can also serve as venues for raising awareness of the risks associated with firearms, educating participants about safer firearm storage, and connecting violence prevention organizations, all of which could potentially lead to reductions in firearm crimes, injuries, or deaths.

The WCSO is one of 12 law enforcement agencies statewide to receive funding as part of the Attorney General’s Office efforts to promote firearm safety, combat gun violence, and support victims of gun violence. Some of the funding will be used to purchase gift cards in exchange for surrendered firearms, to reduce the number of guns in circulation, and to promote community safety.

“As the Sheriff of Whatcom County, I want to emphasize that combating gun violence is extremely important to me, not only as a law enforcement officer but also on a deeply personal level . . . Having tragically lost several family members to gun violence, I understand the devastating impact it has on families, communities, and our entire society.” ~WCSO Sheriff Donnell “Tank” Tanskley.

The Whatcom County Sheriff’s Office will provide additional details about the gun buy-back program, including the date, time, location, and eligibility requirements this coming spring.

HOW SUCCESSFUL ARE GUN BUYBACK PROGRAMS?

Gun buyback programs remain popular despite limited evidence of their effectiveness as a violence prevention tool. A combination of consistently high public support, low cost, and local control contribute to the political and practical feasibility of implementing buyback programs. In contrast, many other violence prevention efforts face intractable political debates, are cost prohibitive, or are implemented at the state or federal level. Buybacks might also be appealing because the results—the guns that are surrendered—provide public officials with the opportunity to point to immediate and visible “success.”

My opinion? The empirical evidence regarding the effectiveness of buyback programs is limited and mixed at best. Regardless, buyback programs continue to garner considerable public support and continue to be implemented in many communities. They’re a step in the right direction.

Please contact my office if you, a friend or family member are charged with a Firearm Offense or any other crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

New Law To Punish Those Who Injure or Kill Vulnerable Road Users

Bellingham Defense Attorney, Mount Vernon Criminal Defense Attorney, Reckless Driving, Skagit County Criminal Defense, Uncategorized, Vulnerable Road User, Whatcom County Criminal Defense, , , ,

New state law to protect vulnerable road users takes effect January 1

The Washington traffic Safety Commission reported that on January 1, 2025, Washington State will implement a new law intended to enhance safety for “Vulnerable Road Users” such as pedestrians, cyclists, and individuals using personal mobility devices.

The law aims to reduce injuries and fatalities from crashes involving non-motorized road users by increasing penalties for negligent drivers. A negligent driver is generally considered to be a person who fails to exercise ordinary care, which then endangers another person.

In the past decade traffic fatalities of vulnerable road users have increased dramatically. Since 2014 annual deaths of vulnerable people on our roads more than doubled. These aren’t just numbers; they’re people in our communities – neighbors, friends, and family.

WHAT IS A VULNERABLE ROAD USER?

Vulnerable road users are people on our roads and sidewalks that don’t have the protection of a vehicle’s cage to keep them safe. This includes people walking, biking, riding scooters and skateboards, using mobility aids, riding motorcycles, traveling by horseback, and even driving a tractor without a protective shell.

NEGLIGENT DRIVING

By statute, a person drives negligently when they fail to exercise ordinary care. To determine negligence, the law compares the action of a driver to a reasonably careful person. Did the driver do something a reasonably careful person wouldn’t do, or did the driver fail to do something a reasonably careful person would do? And did that driver endanger or likely endanger any person or property?

WHAT ARE THE PENALTIES OF VIOLATING THIS NEW LAW?

Under the new law, penalties for a negligent driver who causes the death of a vulnerable road user include:

  • A fine of $5,000
  • Up to 364 days in jail
  • Suspension of driving privileges for 90 days

Penalties for a negligent driver who seriously injures a vulnerable road user may include:

  • A fine of $5,000
  • Suspension of driving privileges for 90 days
  • Traffic school
  • Up to 100 hours of community service

“This law is one part of Washington’s ongoing efforts to make our roads safer for everyone. By focusing on protecting our most vulnerable road users, we’re sending a clear message that when you’re the biggest and the fastest, you need to be the safest, too. Everyone has a right to safe passage on our roads, whether they’re in a car, on a bike, or on foot.” ~Shelly Baldwin, Director of the Washington Traffic Safety Commission (WTSC)

The WTSC will run an educational campaign through January to inform drivers and vulnerable road users about the new law and promote safe road-sharing practices.

Please contact my office if you, a friend or family member are charged with Negligent Driving, Reckless Driving or any other crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

Warrant Quash Day Hosted At Whatcom District Court

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Warrant Resolution Day Offers Chance To Quash Warrants Without Arrest

Whatcom County District Court will hold a Warrant Quash Day on Wednesday, December 4. The purpose of this action is to allow defendants to quash outstanding warrants for their arrest for failure to appear for a District Court hearing in Whatcom County. This is a voluntary event, and individuals are encouraged to take advantage of this opportunity to resolve their outstanding warrants.

Having an outstanding warrant means that a person could be arrested at any time they come in contact with law enforcement. The quash event offers two benefits: one to the person with the warrant and the other to the community at large.

A warrant quash day is an opportunity to for defendants with outstanding warrants for their arrest for failure to appear for a District Court hearing in Whatcom County and remove their warrant. Having an outstanding warrant means that person can be arrested at any time.

On the Warrant Quash Day, the defendant’s case will be called, the warrant will be quashed and a next court date to return will be given. By quashing a warrant, a defendant’s case can get back on track. They will not need to worry about further incarceration for the same warrant.

Those looking to quash their warrants should arrive at District Court Clerk’s Office on the fourth floor of the County Courthouse at 311 Grand Ave. between 10 a.m. and noon Wednesday, Dec. 4.

The quash day is only for warrants issued by the Whatcom County District Court. There has been one other warrant quash day this year. The amount of quash days in 2025 will depend on how many people get their warrants quashed this week.

Eligible warrants include misdemeanor and/or gross misdemeanor offenses. People with warrants connected to charges such as DUIs, trespassing and protection order violations can have the warrant quashed. The individual will be arraigned and have new court dates set. Ineligible offenses include felonies, which are typically charged from Whatcom Superior Court.

Please contact my office if you, a friend or family member are charged with a crime and want to quash a bench warrant. Hiring an effective and competent defense attorney is the first and best step toward justice.

Can Police Use Deception To Extract Confessions?

Bellingham Defense Attorney, Interrogation, Mount Vernon Criminal Defense Attorney, police, Skagit County Criminal Defense, Uncategorized, Whatcom County Criminal Defense, , , ,

Apparently, the answer is “Yes.”

There’s an excellent article in NPR from journalist Meg Anderson saying that advocates are pushing for laws that effectively ban police from lying to suspects during interrogations. In every state, police officers are allowed to lie to adults during an interrogation. The hope, in many cases, is that they’ll get a person to confess to committing a crime.

BACKGROUND

When it comes to laws enforced by the justice system, we have an expectation of honesty, integrity, and transparency. However, police officers are legally empowered to use deception and other types of lies during interrogations.

This ability originates from the 1969 Supreme Court case Frazier v. Cupp, which ruled specific police lies were permissible. The case involved officers falsely telling the suspect that his associate had already confessed, leading the suspect to also confess. The Court said this lie alone was not enough to make the confession involuntary or violate his Constitutional rights.

Since then, no laws have established clear boundaries around what interrogation lies are appropriate versus unethical. Generally, police are legally empowered to:

  • Verbally make false statements about evidence
  • Momentarily lie about offense seriousness or punishment
  • Make unfulfillable promises of leniency for waiving rights
  • Lie about what others told them or what evidence reveals
  • Threaten charges against or harsher punishment for family members

Defense lawyers and civil rights advocates have raised increasing concerns about the prevalence of deception. The argument is that lying puts innocent people at risk of false confessions. However, prominent judges have argued that only coerced confessions through abuse or misconduct can be thrown out – not those involving lies alone. The ethics remain hotly debated.

“Police are trained around the country in all 50 states to use deception during interrogation, to lie both about the evidence against a suspect and to lie about the consequences of confessing in order to make it seem not so bad if you just say that you did these things.” ~Attorney Laura Niridier

Unfortunately, deceptive tactics can also draw false confessions. According to the Innocence Project, nearly a third of DNA exonerations from 1989 to 2020 involved a false confession. Legal experts say the deception bans passed in recent years fail to protect other vulnerable groups: young adults, people with intellectual disabilities, even just people who are naturally compliant.

A GROWING NUMBER OF STATES ARE PASSING LAWS THAT STOP DECEPTIVE TACTICS AT  POLICE INTERROGATIONS

Ten states have passed laws in recent years effectively banning police from lying to juveniles during interrogations, starting with Illinois in 2021. And some legal advocates are pushing for a deception ban that would apply to everyone, not just kids. Deception is a powerful law enforcement tool in eliciting confessions, says wrongful convictions attorney Laura Nirider.

WASHINGTON PROPOSED LEGISLATION TO STOP DECEPTIVE INTERROGATIONS

In Washington state, Democratic lawmakers want to set a higher bar: A bill that would make incriminating statements made in police custody – by adults or children – largely inadmissible in court if obtained using deception. State Rep. Strom Peterson has introduced the bill twice. However, the legislation hasn’t gone anywhere.

The Washington Association of Sheriffs and Police Chiefs said in a statement that it opposes such a measure, because banning deception would take away a tactic that yields “many more true confessions” than false ones.

“Criminals often conduct elaborate stories to conceal their crimes . . . Sometimes the use of deception is required to locate the truth both to convict and to exonerate people. Such deceptions include telling a person that abuse was discovered during a routine medical exam rather than reported by a family member.” ~James McMahan, Director of the Washington Association of Sheriffs and Police Chiefs

GIVING POLICE NEW TOOLS

Those against deception bans see them as an attack on police, says Mark Fallon, a consultant on interrogation practices and former federal agent. In fact, he says, it’s the opposite. There’s another way for police to question people, Fallon says, that relies on building rapport and asking open-ended questions, and where the primary goal is information, rather than a confession.

That technique is used in other countries, including much of Europe. In England, France, Germany, Australia, Japan and elsewhere, for instance, the police are generally not allowed to deceive suspects.

My opinion? Honestly, I’ve never seen a circumstance where a police officer intentionally lied or deceived a suspect during an interrogation in order to illicit a confession. I simply don’t see this technique happening in the police agencies I work with.

Nevertheless, it appears other law enforcement agencies outside of Whatcom and Skagit County use this questionable technique. Clearly, the problem with deceptive interrogation techniques is that it creates more deception. If discovered, the defendant’s confession is clearly corrupted by the lies used to bring it. Studies show that telling little fibs leads down a slippery slope to bigger lies. Our brains adapt to escalating dishonesty, which makes deceit easier. In those cases, a Motion to Suppress the corrupted/false interrogation may be appropriate.

Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

Can Artificial Intelligence Lead to Wrongful Convictions?

Artificial Intelligence, Bellingham Defense Attorney, Evidence, Mount Vernon Criminal Defense Attorney, Skagit County Criminal Defense, Technology, Uncategorized, Whatcom County Criminal Defense, , , , ,

Image: (Kathleen Crosby/Innocence Project)

Photo Courtesy of Kathleen Crosby & The Innocence Project

The Innocence Project published a very insightful article describing how AI-based surveillance systems lack independent verification, empirical testing, and error rate data. These shortcomings lead to wrongful arrests and potentially wrongful convictions. More worrisome, there’s a disturbing readiness among some system actors, especially prosecutors, to accept AI-based evidence at face value. As a result, the eager acceptance of AI-based evidence mirrors the same flawed embrace of misapplied forensic science, which has contributed to numerous wrongful convictions.

BACKGROUND

The use of unreliable forensic science has been identified as a contributing factor in nearly 30% of all 3,500+ exonerations nationwide. Take bite mark analysis, for example. The practice was widely used in criminal trials in the 1970s and 1980s but is poorly validated, does not adhere to scientific standards, lacks established standards for analysis and known error rates, and relies on presumptive tests. It has since been discredited as unreliable and inadmissible in criminal trials due to its shortcomings. Still, there have been at least 24 known wrongful convictions based on this unvalidated science in the modern era.

ADMITTING SCIENCE-BASED EVIDENCE 

The 1923 Frye v. United States decision introduced the “general acceptance” standard for admissibility at trial. In short, the scientific technique must have expert recognition, reliability, and relevance in the scientific community to be “generally accepted” as evidence in court. Some state courts still apply this standard today. Also, the Daubert v. Merrell Dow Pharmaceuticals Inc. decision shifted the focus to evaluating the relevance and reliability of expert testimony to determine whether it is admissible in court.

In applying the Daubert standard, a court considers five factors to determine whether the expert’s methodology is valid:

  • Whether the technique or theory in question can be, and has been, tested;
  • Whether it has been subjected to publication and peer review;
  • Its known or potential error rate;
  • The existence and maintenance of standards controlling its operation; and
  • Whether it has attracted widespread acceptance within a relevant scientific community.

Under Daubert and Frye, much AI technology, as currently deployed, doesn’t meet the standard for admissibility. ShotSpotter, for example, is known to alert for non-gunfire sounds and often sends police to locations where they find no evidence that gunfire even occurred. It can also “significantly” mislocate incidents by as much as one mile. It, therefore, should not be admissible in court.

Similarly,  facial recognition technology’s susceptibility to subjective human decisions raises serious concerns about the technology’s admissibility in court. Such decisions, which empirical testing doesn’t account for, can compromise the technology’s accuracy and reliability. Research has already shown, for instance, that many facial recognition algorithms are less accurate for women and people of color, because they were developed using photo databases that disproportionately include white men.

My opinion? If we are to prevent a repeat of the injustices we’ve seen in the past from the use of flawed and untested forensic science, we must tighten up the system. Too many investigative and surveillance technologies remain unregulated in the United States.

Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.